MALKHAN AND ANR. Vs. RAM NATH AND ORS.

JUDGEMENT

(1.) This Plaintiff's second civil appeal is directed against the judgment and decree of the Civil and Sessions judge, Kanpur dismissing the appeal. Pyare Lal, admittedly was the owner of the plots in dispute. On 13th October, 1959 the village in dispute was notified under the Consolidation of Holdings Act hereinafter referred as the Act. The consolidation authorities demarcated the chak of Pyare Lal. Pyare Lal thereafter executed the sale deed on 28th October, 1961 in favour of Ram Nath and others. On 6th November, 1961 Pyare Lal died. On 21st November, 1961 the Plaintiff Appellant filed the suit, out of which this appeal arises, for cancellation of the sale deed on the ground that the sale deed was a fictitious document and was not the result of intelligent execution. The mutation proceedings were also started in the consolidation courts. In the written statement the Defendant Respondent pleaded for the stay of the suit Under Sec. 5 of the Act. The issue was not pressed, subsequently. The trial court dismissed the Plaintiff's suit holding that the sale deed was a valid sale deed and was not the result of any fraud or undue influence. In appeal the lower appellate court instead of disposing of the appeal on merit dismissed the appeal on the ground that the suit was not maintainable Under Sec. 49 of the Consolidation of Holdings Act. Hence this second appeal.

(2.) Learned Counsel for the Appellant has contended that the finding of the court below is manifestly erroneous because admittedly the stage for filing objections had passed and the chak had already been prepared in the name of Pyare Lal.

(3.) On the other hand learned Counsel appearing for the Respondent has contended that notwithstanding that the chak was prepared in the name of Pyare Lal the suit had to be abated and in any case no suit was maintainable in view of Sec. 49 of the Consolidation of Holdings Act. Reliance has been placed by him on Jagar Nath Shukla v/s. Sita Ram, 1969 AWR 435 wherein it was held that: